Shock to the System

By Jesse B. Gill

The death of Allen Kephart—hit with a Taser 16 times by deputies—brings up ugly questions about “reasonable force”

The Traffic Stop
From the moment he flipped on his lights and siren, Ismael Diaz knew something wasn’t right.

Diaz, a deputy with the San Bernardino County Sheriff’s Department, was patrolling the Lake Arrowhead area about 3:30 p.m. on May 10, 2011 when he saw a black Honda CRV coming up toward him on Daley Canyon Road.
The CRV, driven by a longtime resident of the area named Allen John Kephart, almost hit Diaz’s patrol car while turning left onto Highway 189.

At least that’s what Diaz told the homicide investigators.

Diaz honked his horn before flipping the patrol car around and pursuing Kephart with his lights and sirens on. Kephart, 43, drove for almost a mile without pulling over. He turned onto Highway 18. His family says he was looking for a safe place to stop. Diaz told investigators that Kephart drove past at least one turnout on the winding mountain road.
Kephart finally stopped at a Valero gas station at the intersection of Highway 18 and Pine Avenue. By now, Diaz had flipped on the digital audio recorder on his belt, as law enforcement officers commonly do these days.

Kephart maneuvered his CRV into a parking spot. Diaz pulled up right behind him, treating this as a felony traffic stop.
“Hey!” Diaz shouted. “Put your hands out of the window! Both hands!”

The people who live in the mountain town of Lake Arrowhead—or any of the surrounding communities—describe the mountain life as laid-back and low-key. Yet all of a sudden, a deputy broke the relative calm by shouting orders at a well-known resident of the area.

And right away, Kephart, a man with no history of criminal behavior or mental problems, seemed confused.
“What did you say?” he asked.

“Put both hands up in the air!” Diaz shouted back, by now, his handgun was drawn and trained on the CRV’s driver’s side door.
“Okay,” Kephart answered, still somehow not grasping the severity of the situation. “I’m just going here to the carwash.”
“Okay,” Diaz said. “Put your hands in the air!”

Kephart then got out of the car and Diaz sized him up. The deputy stands about 6 feet tall, weighing about 185 pounds. Kephart’s official size is subject to some debate but what isn’t questioned is that he was a very large man. A medical report listed him at about 6 feet tall and 392 pounds.

For the next few minutes, Diaz kept trying to get Kephart to turn away from him, as is common in felony traffic stops. Though Kephart continually answered “OK,” (according to a transcript of Diaz’s belt recording) he did not immediately comply.
When he finally turned around, Diaz tried to gain physical control over him, also a common practice.
But that’s where everything went to hell.

“Nothing,” Kephart answered, now a bit panicked. “I just—you know—I just misjudged. I guess—you know and—”
As Diaz kept trying to physically detain a man much larger than himself, Kephart seemed to try and explain himself . . . unsuccessfully.

Diaz—gun now re-holstered—tried to put handcuffs on Kephart and force him to lie prone on the concrete.
“Wait a second!” Kephart protested.

“Get on the ground!” Diaz shouted back.

By now people were starting to take notice. Kephart, who mountain residents describe as kind and docile, was being arrested. And it wasn’t pretty.

The handcuffs would not fit around Kephart’s swollen wrists. Kephart stood up again and tried again to face Diaz, the deputy told investigators. He tried to force Kephart’s arm behind his back in a submission move but the man’s size rendered that ineffective. Diaz then reached around Kephart’s neck and yanked him to the ground.

With the wriggling Kephart beneath him, Diaz radioed for backup.

A witness, who knew Kephart since high school, according to the report, began shouting to him, calling him by name, telling him to stop and calm down.

It didn’t work. Kephart continued to struggle despite Diaz’s demands for him to stop.

Diaz pulled out his Taser and used it on Kephart. He told investigators he didn’t think the weapon fired at first but his belt recorder picked up the sound of the electrical discharge. The belt recorder also picked up the sound of Kephart’s reaction.
“I’m not a menace!” he cried. “Please, sir!”

Diaz continued to shock Kephart with his Taser but the huge man still struggled to get up. Feeling the weapon wasn’t doing any good, Diaz tossed the Taser away as he continued to grapple with Kephart.

During that wrestling match, Diaz told investigators, Kephart made a move for the deputy’s belt, possibly his gun.
But backup soon arrived in the form of sheriff’s Sgt. Bryan Lane.

When he pulled up, Lane saw Diaz and Kephart struggling on the ground in the gas station parking lot. Diaz was trying—and failing—to pull the man’s thick arms behind his back.

Kephart was trying to push himself up with his left hand so Lane tried to grab it, unsuccessfully. At 5 feet 9 inches and 170 pounds, Lane didn’t add enough muscle to the fight to make much difference against a man of Kephart’s size.
So Lane announced he would also use his Taser. When he ran up to the scuffle, he saw Diaz’s spent cartridge and wires lying nearby, he told investigators. He knew Diaz used the weapon at least once to subdue the large man.

Despite Lane’s warnings, Kephart continued to fight with Diaz. Lane pulled off the cartridge and thrust the weapon into Kephart’s left side, using a “drive-stun” method.

Diaz’s belt recording captured the sound of Lane trying to convince Kephart to go to his stomach. But Kephart continued to resist.

By then, deputy Michael Gradea arrived. His first (recorded) words were, “Has he been Tased?”

“Yeah, we Tased him,” Diaz said, still struggling.

Gradea told investigators that he saw Diaz and Lane on top of Kephart, who had both hands beneath him and was trying to push himself up.

After trying—and failing—to help Diaz and Lane gain control over Kephart, Gradea also decided to use his Taser. He also used the drive-stun method, thrusting the weapon into flesh.

Deputy Jerred Besheer, who arrived at the gas station about the same time as Gradea, jumped in to the fray and delivered several blows, mostly to Kephart’s arms and legs.

“Don’t hit me!” Kephart shouted, his final (recorded) words.

“Cuff him!” Besheer yelled.

“I can’t!” Lane answered.

“Stop resisting!” Diaz ordered.

“Hit him again with the Taser!” Besheer called. “Hit him again! Hit him again! Hit him!”

Kephart struggled some more and then he was still. By the time the deputies secured his wrists with disposable handcuffs, the man was completely inert. After a few more minutes, he began to turn blue.

The Medical Reports
The deputies called for paramedics immediately after Kephart stopped resisting. Once they realized he was no longer breathing, they tried to revive him using CPR.

Paramedics arrived and rushed Kephart to Mountains Community Hospital in Lake Arrowhead. There, doctors pronounced him dead at 4:25 p.m.

The Riverside County Coroner conducted the autopsy and determined the cause of death to be hypertensive cardiovascular disease—Kephart died of a heart attack.

He was obese and had a diseased heart brought on by hypertension, according to a report prepared by the San Bernardino County District Attorney’s Office. The struggle with the deputies was a “significant” factor in Kephart’s death.
Examiners found multiple scrapes and cuts on Kephart’s body, including puncture wounds where the Taser barbs entered his skin.

Deputies used the Taser on Kephart “possibly” 16 times, according to the investigative report. Eight times by Diaz, seven times by Lane and once by Gradea.

The District Attorney’s Office found that the deputy’s use of the Taser was reasonable, given the way Kephart resisted.

“No doubt that the use of a Taser and, in particular, the extent of its use stirs controversy if death results,” the report reads. “Nonetheless, the Taser was a means to avoid the use of greater force. Under these circumstances, the use of the Tasers was not unreasonable.”

Taser Deaths
Kephart’s death shocked Lake Arrowhead, but deaths at the hands of Taser-wielding police aren’t exactly uncommon, at least not in San Bernardino County over the last 12 months.

Twenty-nine-year-old Jonathan White died Nov. 15 when San Bernardino police officers used Tasers to try and subdue him after he took off his clothes and started screaming at the tenants of the board and care facility his mother operates out of a home in the 1100 block of E. 26th Street.

His mother told reporters that her son suffered from schizophrenia and bi-polar disorder. Police said he might have been taking drugs that could have made his mental problems worse.

Police showed up, they tried to remove White from the home and he fought them, officials said. They struggled with him, but they never struck him with their fists, feet or nightsticks.

They used pepper spray and Tasers to try and gain control over White. Finally, more officers showed up and dog-piled him long enough to handcuff him.

Paramedics showed up and started examining White and he stopped breathing. They rushed him to St. Bernardine Medical Center where doctors pronounced him dead.

In another incident, police responded to a 911 call about 5 p.m. Jan. 15 to a home in the 1100 block of S. Mohave Drive in Colton. Hutalio Serrano, 43, allegedly got drunk and angry, leading his family to call the cops.

Officers showed up and tried to get the 260-pound Serrano to calm down. When he refused to obey their orders and started to fight with them, an officer used a Taser to try and control him.

Colton police officials wouldn’t say—and haven’t said—how many times they Tased Serrano, but witnesses at the scene said it was more than once.

Three cops handcuffed Serrano, who continued to fight them. Then he had “some type of medical emergency,” according to a Colton police news release.

Paramedics rushed him to Loma Linda University Medical Center, where doctors pronounced him dead.
The District Attorney’s Office has not yet made a ruling on whether or not police acted justly in their actions that resulted in Serrano’s death.

Though three Taser deaths in a year is a spike, it’s not exactly a trend. All three deaths came in three separate law enforcement jurisdictions.

When asked if the District Attorney’s Office kept track of police-related Taser deaths, spokesman Chris Lee said the office doesn’t differentiate between types of deaths at the hands of police. Whether someone is shot, Tased or beaten, the office lumps them all together, making it difficult to get a better context on how many Taser-related deaths have occurred in the count over an extended period of time.

Some of them reported seeing Kephart treat the situation like a joke. Others said they felt the deputies’ actions were excessive. Still others were so disturbed at the scene, they left or ducked inside the gas station so they wouldn’t have to watch any more.

“Various witnesses have described the struggle as violent and found it difficult to watch,” the District Attorney’s report stated. “Significant use of force is violent and disturbing by its very nature. When meeting resistance, however, an officer must not shirk from his responsibilities, but must engage it despite the possibility of violence.”

Investigators obtained no fewer than four videos of the struggle. One of them, taken from a storage facility across the street from the Valero gas station, captured the entire incident from the moment Diaz followed Kephart into the parking lot from the time the ambulance carried the large man’s lifeless body away.

After examining the wealth of evidence, investigators came to a conclusion in January, None of the deputies involved in Kephart’s death will face charges.

“All use of force carries some risk,” the report reads. “Nonetheless, officers must use force when confronted with defiance or resistance. Kephart was defiant and resistant. The force used by deputies was limited to overcoming that resistance.”

Not everyone was satisfied with the District Attorney’s Office’s findings.

A Family’s Grief
In the weeks and months following Allen’s death, Carol and Jack Kephart were about as vocal as you’d expect them to be, seeing as they believed sheriff’s deputies killed their son.

They spoke to anyone who would listen—anyone who would print their story (a “Justice for Allen Kephart” Facebook page was also set up last year).

Now, a little less than a year after Allen’s death, the Kepharts are no longer so willing to talk.

That’s mostly because of the lawsuit they’ve filed against the Sheriff’s Department, Diaz, Lane and Gradea. They’re suing for damages—including medical and funeral costs—from what they claim was the wrongful death that stemmed from assault and battery and negligence on the part of the deputies.

When contacted, Carol Kephart referred all questions to the family’s Newport Beach-based attorney, Michael Goldstein. But he failed to respond to multiple phone messages seeking comment, leaving the lawsuit to speak for itself.

The Kepharts claim Allen didn’t immediately pull over for Diaz because he had no safe place to do so. They claimed he drove safely to the Valero gas station, got out of his car and put his hands in the air. They claim Diaz moved up behind him and threw him, face-first, to the ground, despite being half his size.

The suit alleges the deputies beat and Tased Kephart with no justification. It also claims that deputies, who were not named, laughed and mocked Kephart as Diaz, Lane and Gradea struggled with him.

The entire incident lasted less than 10 minutes, but left a lasting imprint on the community of Lake Arrowhead.

The death spurred community meetings and marches. It led to panicked discussions, with residents scared that their local sheriff’s deputies had turned against them.

The community’s trepidation wasn’t lost on the District Attorney’s investigators, though it didn’t sway them toward ruling Kephart’s death justifiable.

“The grief from his death is felt by his family, friends and the whole community,” the District Attorney’s report stated. “And yet, assessing whether his death constitutes a criminal homicide is not controlled by that fact. The issue is whether the force used by the deputies was unreasonable.”

Though the District Attorney’s report states Kephart failed to pull over for almost a mile (0.9 miles), a drive along the route the reports describes shows that distance is much shorter, about a half-mile.

Because of the Kephart’s lawsuit, neither the Sheriff’s Department nor the District Attorney’s Office will comment about the case.